Bissell v. Grant

Butler, J. The plaintiff laid his. pipe in the defendant’s land, and to the defendant’s spring, and drew the water therefrom, pursuant to an unequivocal and valid grant. The defendant took up and removed the pipe and the plaintiff replaced it. It was again removed, and still again replaced and removed. Whatever may be said of the abuse of his right by the plaintiff, the acts of the defendant were wanton and unnecessary. A plugin the end.of the pipe, or the removal of the end of the pipe from the water would have prevented the flow. And so a contraction of the end of the pipe with a pair of nippers would have prevented any abuse of the right. The' plaintiff then cannot justify the acts done except by showing an extinguishment of the right, and this, admitting the validity of the deed, he attempts to do. He says, in the first place, that the privilege conveyed by the deed was not an easement in gross, but appurtenant to the real estate then owned by him. Such seems to have been the intention of the parties to the deed, looking to its language, and the surrounding circumstances. And so it may fairly be construed. The defendant further claims, that the deed from the plaintiff to his children in 1858, of the estate to which the privilege [296] was intended to be appurtenant, without an express conveyance of the privilege, and reserving a life estate only to himself and wife, extinguished the easement in question; but this is not manifest. He says, in the first place, that at the time of conveyance to the children, the privilege had never been exercised or reduced to actual use and occupation, and did not pass as an appurtenance to the plaintiff’s children under his deed. He says, if we understand him, that the right not having been exercised, remained in the nature of an incorporeal hereditament merely, and did not become appurtenant to the estate. There is some nicety in the law in relation to the character of the easements which will pass to a grantee with the estate, without being named in the deed, and as incidents or appurtenances to the estate. Whether the privilege in question, not being named in the deed, passed to the plaintiff’s children or not, is not a material question in this case ; but if the defendant is right in his assumption that the deed of the privilege constituted that privilege an appurtenance to the plaintiff’s estate, and it thereby became such, it is not easy to see why upon principle, and consistently with the authorities cited, it did not pass as an appurtenance to the children ; and why, if they had taken the entire estate, they could not have exercised the privilege at any time before it was lost or abandoned. It is said that it did not exist in appearance, and was not then in use, or absolutely necessary to the enjoyment of the estate. But it did exist in fact and law, as an appurtenant right by force of a recorded deed of which both parties had knowledge, and it may well be presumed that both parties contemplated it as an appurtenance which would pass. Moreover, the subject-matter of the privilege was the enjoyment of the water of a certain spring, conducted on to the premises of the plaintiff to be there enjoyed by him. The plaintiff had not so conducted it by means of a pipe, but the defendant had so conducted it on to the plaintiff’s premises by means of a trench, and the plaintiff was in the enjoyment and use of the entire water of the spring. This conventional use of the subject-matter of the privilege, though in a different [297] manner, would seem to be a sufficient actual use of the ease, ment within the most technical nicety involved in the decision of the cases cited. But, as we have said, the decision of this question is immaterial. The plaintiff possessed the privilege by force of the defendant’s deed, and, as far as he was concerned, it had not been lost, abandoned or extinguished. When he conveyed to his children, he retained a portion of the estate, to wit, a life estate for himself as well as his wife. The argument of the defendant assumes that the conveyance to the children, reserving the life estate, placed the plaintiff in the same position that he would have been in, if he had conveyed his whole estate to the children, and taken back from them a conveyance of a life-estate for himself and wife. But the assumption is unfounded. A conveyance like that made by the plaintiff to his children did not for an instant deprive the plaintiff of an interest in the estate. It was holden in the cases cited, of Barrett v. French, 1 Conn., 362, and Fish v. Sawyer, 11 Conn., 545, that such a conveyance would be good to convey a remainder merely, and to retain a life estate, by force of immemorial usage and custom in this state, if it was not good as a covenant to stand seized. In either event, a remainder only passes by the deed and the life estate is excepted and retained, even though the reservation is contained in the habendum of the deed. Whatever may be said, therefore, as to the rights of the children or of the wife in respect to the privilege in question, the right of the plaintiff to the enjoyment of it during his life cannot be questioned, for as to him there can be no pretence of extinguishment. The defendant further claims that the plaintiff was a trespasser in attempting to use the privilege, because he did not take the water to his house and barn and use it in a reasonable manner. We do not think this claim should prevail. The grant of the privilege is that he “ shall have the right to lay a pipe one half inch in diameter from the spring which is on the lot of said Grant, purchased this day of Sanford Grant, and from said spring conduct by a pipe as aforesaid to the [298] dwelling-house and barn of said Bissell and his heirs forever adding, said Bissell “ shall have a right to dig a trench or ditch across the lot of said Grant, from said spring to the north line of said lot, for the purpose of laying said pipe.” The pipe was in fact laid from the spring on to the lot of the plaintiff, in the general direction of the house and barn, and the cattle of the plaintiff there watered, the water being permitted to run at all times the full size of the pipe. There can be no doubt, we think, that upon a true construction of the deed, the plaintiff had a right to draw all the water from the spring which would run through a half inch pipe. It is a rule in the construction of deeds, that the language, being the language of the grantor, is to be construed most strongly against him. He did not see fit to put any restriction upon the quantity of water taken, unless the size of the pipe constitutes such restriction. He authorized the water to be taken by a pipe of that size, and by a just application of the rule stated, must be deemed to have authorized the taking of all the water which such a pipe would conduct. Moreover, it is the general practice to measure the quantity of water to be taken from springs and flumes and reservoirs by the size of the pipe or orifice through which it is to flow. It was not an abuse of the right therefore, for the plaintiff to permit the water to flow continuously from the mouth of the pipe. Nor was it an abuse of the right to use the water thirty rods from Ms house and barn, instead of using it at those places. It is well settled that the owner of an easement, if not prevented by words of absolute restraint, may change the mode of using it, if he does not make it more onerous to the servient estate. Here the use of the water did not affect the defendant injuriously. ' It could make no difference to him whether he conducted the water to his house and barn and there received it M vessels for the irse of his family and for watering his cattle, or whether he stopped short of both with his pipe and carried the water in pails to his house, or drove his cattle to that spot to water them. No more water was taken in either event than the deed justified, nor was it appropriated to any different purpose, and if the site of a mill may [299] be changed, and with it the terminus of the flow of water by which it is operated may be changed under a grant, surely the terminus of a pipe leading from a spring may be changed, and located to suit the convenience of the grantee, unless the grantor has seen fit to prevent it by some restriction in the deed. The defendant claims, in the third place, that the plaintiff had lost his right by estoppel, but there are no facts found to justify that claim. ' The Superior Court must therefore be -advised to render judgment for the plaintiff. In this opinion the other judges concurred.